The Law Center

9 Tips for Defending a Support Contempt Hearing (How to avoid a finding of a willful violation)

If you’ve received a contempt notice for failure to pay a child support order, be aware that the judge can put you in jail.  The constitution guarantees you the right to an attorney when your liberty is at stake, but your county may or may not provide this to you; assume that you won’t be able to speak to an attorney.  In order to prove contempt for failure to pay support, it must be proven that you deliberately failed to comply.

Here are some important things you should know in defending a contempt petition for failure to pay: 

1)  If you’ve lost your job, been demoted, became disabled, or otherwise lost income, immediately file a petition to reduce your child support.  The contempt petition hearing is not the time or place to discuss the unfairness of your order or say support’s too high because things changed.  It’s too late to fight the amount of the order at your contempt hearing.   The judge won’t listen. 

2)  If the other parent is keeping your child away from you, that’s not an excuse to stop paying child support and the judge won’t be sympathetic.  You still have to make the support payments for a child that’s wrongfully being kept away from you.  The judge will say that he/she can’t consider that and you have to file a contempt petition for the other parent’s violation of the custody order.  You still have to make the support payments when you are not seeing your child.

3) Never make any support payments in cash.  Any money that you give to the child directly or gifts that you give to your child’s parent won’t count for support.  If you’ve given checks directly to your ex, you must put in the memo, “child support,” and you still have to bring the proof of payment to your hearing and discuss it in court.   You can try to correct this issue with support enforcement if you have time.   The court will only credit that money against any child support obligation that you can prove and you’re required to send the payment in to the state PASCES system (or the similar system of your state) if it’s been set up.  If your PASCES account hasn’t been set up yet, make payments independently and continue to support your child, but be sure you can prove what payments you’ve made.

4) Always make regular payments even if you can’t make the whole payment, especially in the weeks immediately before the hearing and if the judge keeps bringing you back into court.  If you make regular payments, you can at least show that you respect the court, respect the order, care about your child, and understand your obligation to pay support.  If you make regular payments, your argument that you aren’t deliberately refusing to pay will be more credible.

5)  When you appear at the hearing, show respect to the court in every way possible:  your demeanor, body language, tone of voice, words you use, and your appearance.  Be humble, apologetic, and deferential.   Accept responsibility for any unpaid amount, and acknowledge your support obligation, even if you think it’s unfair. 

6)  Be aware of your appearance.  There’s another article on this blog discussing appearance and respect for the court so be sure to review before you go to the hearing.    However, in defending a contempt petition for failing to pay support, you have another concern:  the judge will evaluate things you’ve spent money on rather than paying child support.   For instance: an expensive smart phone or other electronic devices;  expensive watches, rings, or other jewelry;  designer shoes, clothes, coats, or other clothes. Always dress appropriately and look respectful for the court, but be careful to avoid showing that you have more money than you actually have.   It will be used against you.

7)  Be prepared to discuss your regular expenses and explain why you are current with your other bills instead of paying your child support (for example, your TV, Internet, phone bill, car expense, rent, and other personal expenses).  When the judge is asking you questions at the hearing, he/she will be evaluating your spending habits and whether you live above your means.   

Be prepared to defend your lifestyle when you’re behind in your support.  Spend time and examine your spending habits BEFORE you go so you don’t need to think on your feet.  Anticipate ways where you can adjust your spending and increase your income BEFORE you appear in Court rather than in the court room pressure cooker.  You’re better off starting good habits before you go rather than promising to do so in the future just to stay out of jail.

8)  If you’re unemployed but still obligated to pay, be prepared to discuss the efforts you’ve made to get a job.   Go back to when your income was reduced and prepare to tell the story of your tireless efforts to secure a job so you could meet your obligations.    Discuss why your failure to get a job was through no fault of your own.  Don’t “play victim” and state that things are outside your control.  Show it’s not your fault by explaining in detail how hard you tried, and still are.  Communicate your daily efforts to earn money.   If you haven’t been looking for work or applying for jobs, start immediately.  Discuss efforts to find available work, provide copies of job applications, and list the interviews that you’ve had whether it led to employment or not.  Demonstrate that you’re trying.

9) Never lie, criticize the court and/or justice system, speak badly about your child’s parent, or get angry in court even if you’re enraged about the unfairness of it all.  It will only make things worse. 

Follow these steps and you’ll have a better experience in support court that would if you didn’t.  For legal representation for your family law claim, click the “Request Consultation” button.